3PLR – ALHAJI K. LAGURO & ORS. V. HUNSU TOKU & ORS

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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ALHAJI K. LAGURO & ORS.

V.

HUNSU TOKU & ORS

COURT OF APPEAL

(LAGOS DIVISION)

MONDAY, 19TH MAY, 1986

SUIT NO. CA/L/205/83

3PLR/1985/51  (SC)

 

OTHER CITATIONS

(1986) 4 NWLR (Pt. 33) P. 90

 

BEFORE THEIR LORDSHIPS:

ADENEKAN ADEMOLA, J.C.A. (Presided)

PHILIP NNAEMEKA-AGU, J.C.A. (Dissenting in Part)

IDRIS LEGBO KUTIGI, J.C.A. (Read the Lead Judgment)

REPRESENTATION

1. Sofola SAN (with him Debayo Doherty and A. O. Aniagolu) – for Appellants

Chief F.R.A. Williams SAN (with him Miss A.A. Arta) – for Respon­dents

MAIN ISSUES

APPEAL – Amendment of Pleading on appeal.

APPEAL – Finding of fact by trial Court – Attitude of appellate Court.

LAND LAW – Compulsory Acquisition – Mere publication of notice of ac­quisition – No certificate of title in evidence – Whether acquisition proved.

LAND LAW – Onus of Proof of title to land – Defendants admitting Plaintiffs’ possession – Onus on Defendant.

PRACTICE AND PROCEDURE – Pleadings – Amendment – Amendment of pleadings on appeal – Propriety of.

MAIN JUDGEMENT

KUTIGI, J.C.A. (Delivering the Lead Judgment):

In the Lagos High Court the plaintiffs, now respondents claimed against the defendants, now appel­lants, jointly and severally as follows:­

1. A declaration of title to all that piece of parcel of land at ITOGA in Badagry Division now claimed by the defendants;

 

2. £500 (five hundred pounds) damages for trespass to the said land; and
3. Injunction restraining the defendants, their servants, agents or other members of the IBEREKO Community from continuing such trespass or repeating the same.

 

Pleadings were ordered, filed and exchanged by the parties. These were subsequently amended and finally settled.

 

In their Amended Statement of Claim the respondents averred that the land in dispute is part of a piece of land which from time immemorial has been vested absolutely in them, and that over the years, they have exercised maximum and numerous acts of ownership thereon through their ancestors, WHUNU, DOSU, WHEDETOGAN, HUNGA and SOTANYANJI. They also pleaded in the alternative that they were lawfully in actual and peaceful possession of the land in dispute at all material times. And that it was on or around the 9th day of February 1972 that the appellants without any lawful claim wrongfully entered the said land and committed various wanton acts of trespass thereon.

 

The appellants in their Amended Statement of Defence contended that all the land being occupied by the respondents including the land in dispute forms portion of the vast area of land which from time immemorial has ves­ted absolutely in them and have for many years exercised maximum overt acts of ownership thereon without any interruption. And that it was their an­cestors who put the respondents’ ancestors on the portion of land they now occupy as customary tenants. That the respondents are their tenants in re­spect of all the land they occupy including the land in dispute and only make use of same at the will of appellants.

 

In the Counter-claim the appellants contended that one of the condi­tions of the grant to the respondents of the portions of land occupied by them is that they should not lay claim of ownership over the said land, sell or lease the same or any part thereof without their permission or consent. It was then averred that the respondents have committed breaches of the said condi­tions and have thereby incurred forfeiture of their customary tenancies of the area they occupy including the land in dispute. The appellants therefore counter-claimed for a declaration of title to the land, forfeiture of the cus­tomary tenancies held by the respondents and possession.

 

In their Defence to the Counter-claim the respondents deny the appel­lants’ averments as to ownership of the land and in the alternative that they are entitled to relief from forfeiture.

Both sides called witnesses in support of their claims before the High Court. At the end of the trial, the learned trial judge found in favour of the respondents. They were awarded the land in dispute, N200 damages for tres­pass and an injunction restraining the appellants their servants, agents or other members of the IBEREKO Community from continuing or commit­ting any further acts of trespass on any portion of the disputed land.

 

It is against this decision of the trial judge that the appellants have now appealed to this Court. Ten grounds of appeal were originally filed. Learned senior counsel for the appellants Mr. Sofola was granted leave to argue five additional grounds. I do not need to set them out here at all. Apart from the fact that the 15 grounds overlap one another, it would appear from the briefs filed that they have all been argued together on identification of the princi­pal single issue for determination in this appeal. The issue in the words of ap­pellants’ counsel Mr. Sofola is “who of the two parties actually settled on the land in dispute in the first place, and exercised acts of ownership on the land?”

 

Counsel said the record of proceedings in the High Court shows that the respondents came to Nigeria from Dahomey and are therefore not Nige­rians. It was then contended that not being Nigerians, the respondents can­not lay claim to any land in Nigeria and that it was the appellants’ ancestors who granted land to the respondents’ ancestors as tenants. That when the re­spondents now claim the land as their own they forfeit their right of tenancy. He referred to p.188 of the record lines 23-24 and p.200 lines 7-11, p.32 lines 32-37 and submitted that the names therein like HUNSU, TOKU, AJA, WHENU, DOSU, WEDETOGAN and HUNUGA are all none-Nigerian names and therefore the respondents are necessarily mere tenants of the ap­pellants and cannot validly lay claim to the land in dispute. He said even the respondents’ witnesses admitted in their evidence that their ancestors came from Dahomey and the evidence of P. W.3 Chief Amos David, showed that the respondents were not in exclusive possession of the land at all. Learned counsel also referred to the evidence of appellants’ witnesses in the Court below and submitted that it showed that their ancestors came all the way from ILE-IFE to settle on a large piece of land including the land in dispute and that according to D. Ws. 2, 3, 4, 5 & 6 it was the Ibereko people (i.e. the appellants) that are the landlords of the Ajarabedo people (from Dahomey) and not otherwise. That it was the appellants’ ancestors that gave land to the respondents as tenants. He referred to evidence of D. W.5 who is the 2nd ap­pellant and to EXH. D and said that it confirmed that the respondents like their ancestors paid tributes to the appellants until the commencement of the suit.

It was Mr. Sofola’s contention therefore that a careful reading of the judgment shows that there is a failure on the part of the learned trial judge to properly evaluate the evidence led in the case and particularly the evidence led on behalf of the respondents. He said although the judge summarised the evidence on both sides it does not appear that he evaluated the evidence properly neither did he apply the propositions of law properly to the evi­dence led in the case. That the learned trial judge failed to advert his mind to material evidence especially EXH.D and the implication of the evidence of P. W.3 to the effect that both the respondents and the appellants are tenants of Ajarabedo community. He said the learned trial judge ought to have con­sidered the allegation that the Iberekos (appellants) are tenants of the Ajarabedos (from Dahomey). That P. W. 3’s evidence goes to show that both the appellants and the respondents are jointly in possession of the land.

 

Counsel further submitted that it was not sufficient for the learned trial judge to simply say “I believe” or “I do not believe” without actually evaluating the evidence before him. The cases of Oladehin v. Continental Textiles Mills Ltd. (1978) 2 S.C.23 and Mogaji v. Odofin (1978) 4 S.C. 91 at 94 were cited in support. It was then submitted that on the totality of evi­dence the trial judge was wrong to have found for the respondents.

 

On the award of a customary right of occupancy to the respondents by the trial judge, Mr. Sofola said this was wrong. He said the dispute arose when both sides became aware that the Lagos State Government had al­ready acquired the land on or about June 1971, long before this action was commenced in 1972. He referred to the evidence of P.Ws. 1, 2 & 3 and to EXHIBIT B. He said the Land Use Act, 1978 came into force on 29/3/78. It was then submitted that by December 1980 when judgment in this case was ‘being delivered, the respondents could not in law be held to be the “holders” or “occupiers” of the land in dispute as defined by the Land Use Act and are therefore not entitled to the order made by the trial judge for a grant of a cus­tomary right of occupancy over the land in dispute.

 

On trespass, Mr. Sofola submitted that the learned trial judge failed to make a finding as to which act of the appellants he found proved as amount­ing to trespass and upon which he was basing his award of damages. He said the action was instituted on 3/2/72 while the Amended Statement of claim pleaded 9/2/72 as the date of trespass. He urged the court to allow the ap­peal.

 

Chief Williams learned Senior counsel for the respondents in reply sub­mitted that the appellants admitted that the respondents are in possession of the land in dispute since they alleged in their pleadings that the respondents were their customary tenants. That it was on this basis that they counter­claimed against the respondents for a declaration of title, forfeiture and pos­session of the said land. He said on the pleadings and evidence before the court there can be no doubt that the respondents were in possession of the land and farming on it while there is nothing on record to show that the appellants were in possession apart from P. W.3 (Amos David) who said the ap­pellants farmed there. He referred to the findings of the fact made by the trial judge in this regard on pages 214, 215 and 216 of the judgment, which he said are amply justified.

 

It was further submitted that appellants having conceded that the re­spondents were in possession of the land and farming it, this is a case where the burden of proof lies on the appellants to prove that the respondents are in possession as their (Appellants’) tenants because the law presumes that the respondents are in possession as owners. He referred to section 145 of the Evidence Act and Onyeakaonwu & Ors. v. Ekwubiri & Ors. (1966) Vol. I ANLR 32.

 

It was then submitted that the appellants completely failed to discharge the burden of proof on them and that the trial judge rightly gave judgment in favour of the plaintiffs/respondents.

 

Counsel referred to the evidence of P.W.3 (Chief Amos David) and pointed out that he was Bale of Ajarabedo and was not a member of respon­dents’ community and that each of the two communities in the action did so “for themselves and on behalf of other members of Hoga Zanmu commun­ity” and have their respective Bales. That the witness (P. W.3) made it clear in his evidence that his community (Ajarabedo) had their own land separate and distinct from the land of each of the parties to this action. Counsel also said the trial judge was right when he found that the document EXH. D con­tains no admission of payment of any tribute. He said the trial judge was right in treating the allegation of P.W.3 that the Iberekos are tenants of Ajarabedos as irrelevant, since no such allegation was pleaded by either party and so the evidence went to no issue.

 

On Government acquisition of the land, Chief Williams submitted that mere publication of acquisition notice does not operate to deprive the true owner of his rights in the land. That what divests the owner of his rights in the property is the Certificate of Title issued by the Court to the Government under the Public Lands Acquisition Law. He cited in support:

 

1. Atunrase & Ors. v. Fed. Min. for Works & Housing (1975) 1 ANLR (part 1) 331 at 339;

 

2. City Property Dev. Ltd. v. Att. Gen. of Lagos State & Ors. (1976) 1 ANLR (Part 1) 28 at 62-63;

 

3. Lion Buildings Ltd. v. Shadipe (1976) 12 S.C. 135 at 146-149.

 

It was then submitted that the appellants must prove the issuance of a certificate of Title to the Government before they can succeed to divest the respondents of their title in the land in dispute. He said the declaration made by the trial judge was justified on the facts and was consistent with the provi­sions of the Land Use Act.

 

On the claim for trespass, learned counsel conceded that while the writ was filed on 3-2-72, the averment contained in the Amended Statement of Claim is to the effect that the trespass was committed “on or about 9th Feb­ruary 1972” and that this was irregular. Counsel however referred to the evi­dence of P.Ws. 1, 2, 4 and 5 at pages 123, 125, 145 and 147 respectively where the evidence of trespass to which no objection was taken were re­corded. He said none of these witnesses gave any specific date of the trespass and that throughout the proceedings no application was made to strike out para. 7 of the Amended Statement of Claim or the offending portion thereof. Therefore it was submitted that in order to bring the pleadings in line with the evidence led the phrase “on or about 9th day of February 1972” ought to be amended to read “sometime before the commencement of this action.” He relied on Ibanga & Ors. v. Usanga & Ors. (1982) 5 S.C. 103 at 126-127. It was stressed that the order of the trial Judge should not be upset on this technical ground since he saw the respondents’ witnesses and prefer­red their evidence to that of the appellants who merely denied the trespass. That there was no doubt that the trespass complained of must have been committed before the action was commenced. He Urged the Court to dismiss the appeal.

 

Mr. Sofola in a brief reply submitted that Ibanga case (supra) relied upon by Chief Williams should not apply here since this is a concocted case and the trial judge failed to evaluate properly the evidence adduced before him. That the amendment in this case if granted would lead to a miscarriage of justice and it will prejudice appellants’ case since there could be no cross-examination.

 

It was also submitted that the appellants too showed that they were farming on the land and that the onus is on the respondents, and not the ap­pellants, to prove their case. He said it is not the duty of this Court to try a case but rather it is to examine the way a case has been tried. He cited Oroke v. Ede (1964) NMLR 118 in support. Counsel said Onyekaonwu case relied upon by the respondents does not apply because the parties are in joint pos­session and the burden cannot be shifted onto the appellants.

 

I will quickly answer this point by saying that it is settled law that there can be no such thing as concurrent possession by two people claiming ad­versely to each other (see Amakor v. Obiefuna (1974) 1 ANLR (Part 1) (119). The parties herein cannot therefore in my view be said to be jointly in possession of the land in dispute.

 

As I have indicated above the single main issue for determination in this appeal is: Who of the two parties actually settled on the land in dispute in the first place and exercised acts of ownership on the land?

 

The finding of facts made by the learned trial judge in this regard are vital as they are decisive. It is to be found on pages 214-215 of the judgment as follows:­

 

“I am inclined to believe the evidence of the Plaintiffs more proba­ble, the plaintiffs have adduced evidence of positive and numerous acts of ownership, like letting portion of the land, farming different portions thereof and surveying the land. I believe that the ancestors of the Plaintiffs had been farming the land in dispute and that they planted thereon several economic trees and cash crops. I believe also that the Plaintiffs themselves were farming extensively over the land in dispute, I believe the evidence of the Plaintiffs and second defendant that the Plaintiffs’ ancestors had been on the land in dis­pute some 300 years ago. There is no evidence of any positive or co­gent act of ownership by the Defendants over the land in dispute .

 

I believe the Plaintiffs as to their acts of ownership over the land and hold that such acts are numerous and postive enough to warrant the inference that they are the owners.”

 

It is significant that the appellants have not challenged any of the above findings of facts before us. They probably realised that it would be a futile exercise since both on the pleadings and evidence before the Court there can be no doubt that the findings were amply supported by the evidence of the witnesses. Further it is settled law that the ascription of probative values to evidence is a matter primarily for the Court of trial and where a court of trial unquestionably evaluates the evidence and appraises the facts, it is no busi­ness of a court of appeal to substitute its own views of undisputed facts for the views of the trial court (see Balogun & Ors. v. Agboola (1974) 1 ANLR (Part 2) 66). It is equally settled that a Court of Appeal should not easily dis­turb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performance even though such findings of fact or the inferences drawn from them may be questioned in cer­tain circumstances. (See for example Fatoyinbo & Ors. v. Williams (1956) 1 FSC 87; Akinloye & Anor. v. Eyiyola & Ors. (1968) NMLR 92). None of the special circumstances is shown to exist in the case nor has any been urged upon us.

 

While I agree with Mr. Sofola that there is no magic in the words of a trial judge saying “I believe this” or “I disbelieve that” as pointed by the Sup­reme Court in Oladehin case (supra); I must add that there is nothing inhe­rently wrong with the use of such expressions where it can be shown, as in this appeal, that the trial judge actually evaluated the evidence of the witnes­ses who testified before him (see Akibu v. Opaleye & Anor. (1974) 11 S.C.189). Mr. Sofola himself conceded in his brief that “the judge sum­marised the evidence for both sides and throws here and there some propos­itions of law.” His complaint is that the judge did not evaluate the evidence properly nor did he apply the propositions of law properly to the evidence led. He has failed to tell us which evidence was not evaluated or properly evaluated or the principle of law which the trial judge failed to apply prop­erly. It is my view that the criticism that the learned trial Judge did not prop­erly evaluate the evidence is completely misconceived and it is unfounded.

 

I now turn to consider Chief Williams’ submission that the appellants having conceded that the respondents were in possession, the burden of proof lies on them to show that the respondents were in possession only as their (appellants) tenants. I think there is some force in the submission. I am inclined to agree with Chief Williams that on the pleadings and the evidence there can be no doubt that the respondents were in possession of the land and farming it. This much was admitted by the appellants themselves who said the respondents were their customary tenants and therefore counter­claimed as they did. There is no doubt that section 145 of the Evidence Act provided that the person in possession of any property shall be presumed to be the owner thereof. This may however be rebutted by showing that the person has been paying rent, tribute, ishakole, hire or charter fees to some other person in respect of the property of which he is in possession. In the circumstances of this case therefore I am of the view that the principle in Ek­wubiri case (supra) applied and that the onus was on the appellants to prove that the respondents were their tenants in respect of the land in dispute. This clearly, they failed to do at the trial. There is no doubt at all that in civil cases while the initial burden of proof lies upon the plaintiff, the burden may shift to the defendant and vice versa backwards and forward (see Osawaru v. Ezeiruka (1978) 6 & 7 S.C. 135. And when the burden so shifts, it is the party who fails to discharge the burden that will fail in the action. So it is in this case. The appellants failed to discharge the burden on them and therefore rightly lost the case.

 

Next to be considered is the evidence of P. W.3 (Chief Amos David) and Exhibit D. I agree with Chief Williams that this witness on the evidence was not a member of the respondents’ community. He clearly stated that “he knew Ibereko and Itoga land and Ajarabedo land” and when he proceeded to say that the Iberekos are tenants of Ajarabedos, the learned trial judge rightly ignored the later piece of evidence as irrelevant and going to no issue since no such allegation was pleaded by the parties (see George & Ors. vs. Dominion Flour Mills Ltd. (1963) 1 ANLR 71). I am also in complete agree­ment with Chief Williams that EXH. D contains no admission whatsoever concerning payment of tribute by. the respondents to the appellants in re­spect of the land in dispute or any land at all. Thanks to the accurate English translation of EXH. D which is in Yoruba, now made available to the Court. So that is that.

 

On the Land Use Act 1978 and the acquisition of the land in dispute by Lagos State Government, I think although the witnesses on both sides spoke of “acquisition” by the government, there is no evidence as rightly submitted by Chief Williams that the government has obtained any Certificate of Title to the land and on authorities of Atunrase & Ors. vs. Fed. Com. for Works & Housing (supra); City Propety Dev. Ltd. v. An. Gen. Lagos State (supra) and Lion Buildings Ltd. vs. Shadipe (supra) until this has been done, title to the land remains vested in the respondents in this case. The Supreme Court put it succinctly in Atunrase & Ors. v. Fed. Corn. For Works & Housing (supra) where it is stated thus:­

 

“We think we ought to make it clear that, in the absence of any par­ticular statutory provision to the contrary, the issuing of the public notice of acquisition, does not immediately vest the title to the land in the Government, but that the latter may acquire it only after satisfying the provisions of the Public Lands acquisition Act requir­ing that a Land Certificate should be obtained as proof of title.”

 

In my view the declaration made by the learned trial judge that the respon­dents are entitled to a Customary Right of Occupancy (mistakenly referred to as a Right of Customary Occupancy in the judgment) is justified on the facts and consistent with the provisions of the Act as well.

The final point raised in this appeal is the question of amendment of para. 7 of the respondents’ Amended Statement of Claim relating to trespass. It reads:­

 

“7.     The Defendants on or around the 9th day of February 1972 with­out any lawful claim of right or title unlawfully entered the said land destroyed palm trees ….”

 

Chief Williams for the reasons already stated in this judgment wants the phrase “on or around 9th day of February 1972” to be amended to read “sometime before the commencement of this action.” Mr. Sofola is strongly opposed as earlier indicated.

 

I agree as rightly conceded by Chief Williams himself that para. 7 of the Amended Statement Claim above is irregular since it averred that trespass was committed on or around 9.2.72 while the writ was filed on 3.2.72. 1 also agree that neither of the P. Ws. 1, 2, 4 and 5 who gave evidence relating to trespass gave any specific date thereof even though they were cross-examined and re-examined. So I can safely say that the amendment sought is manifestly to bring the pleading in line with the evidence already led; or in other words it is for correcting the defect or error in the proceedings. Gener­ally speaking the guiding principle is that amendments of pleadings ought to be made “for the purpose of determining the real question in controversy be­tween the parties to any proceedings or of correcting any defect or error in any proceedings,” (see per Jenkins L. J. in G. L. Baker Ltd. vs. Medway Building & Supplies Ltd. (1958) 1 W.L.R. 1216 at 1231.

 

In Tylbesley v. Harper 10 Ch.D. 396 at 397, Bramwell L. J. also had this to say: My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide or that by his blun­der, he had done some injury to his opponent which could not be compen­sated for by costs or otherwise.”

 

I entirely agree with the above established principles of law and will apply them to this case. Since none of the witnesses who testified in the court below, gave any specific date of the alleged trespass, I am of the view that in order to determine the real matter in controversy between the parties it would be necessary to grant the amendment so as to bring them in line with the evidence led at the trial. I am also of the view that this application has not been brought mala fide and by this blunder the respondents had done no in­jury to the appellants which could not be compensated for by costs or other­wise. I am equally of the view that the judgment of the trial Judge should not be upset merely on this technical error because a court of law must give judg­ment according to the justice of the case (see Karimu Ayinla v. Sifawu Sijuwola (1984) 5 SC. 44). I do not subscribe to the view expressed by Mr. Sofola that the amendment if granted would lead to a miscarriage of justice or prejudice the appellants’ case in any way. As I said earlier on the relevant P.W.s. 1, 2, 4 & 5 were cross-examined by the appellants’ counsel at the trial. I will therefore grant the application and accordingly substitute the phrase “on or about the 9th day of February 1972” in para.7 of the Amended Statement of Claim with the phrase “sometime before the commencement of this action.” If there was no trespass before the writ was filed, I wonder what would have given rise to the suit in the first place.

 

On the whole this appeal therefore fails. It is hereby dismissed. The judgment of Desalu, J. delivered on 19th December 1980 and the orders made therein are hereby confirmed.

 

The respondents are awarded the cost of this appeal which is assessed at six hundred and fifty Naira (N650.00).

 

ADEMOLA, J.C.A. (Presiding): I agree with the judgment just read, I have nothing to add.

 

NNAEMEKA-AGU, J.C.A.: I read in advance the judgment of my brother, Kutigi, J.C.A. just delivered. On the whole, save on the question of the proposed amendment of the claim, I agree with his reasoning and conclu­sions. On these, I only wish to add that on the pleading before the Court the appellants did not make an issue of where the parties originally came from. In any event, whether or not the respondents came originally from Dahomey, the decisive consideration is which of the parties had title and possession of the land in dispute. The appellants by the nature of the case they brought to court conceded that the respondents were in possession, though as they maintained, as their customary tenants. The learned Judge resolved possession and title in favour of the respondents, and my brother rightly in my view, agreed with him.

 

It is on the issue of the proposed amendment of paragraph 7 of the state­ment of claim that I respectfully hold a different view. I wish to state the re­levant facts. The writ of summons which was issued on the 3rd of February, 1972, claimed, inter alia, the sum of N500.00 as damages for trespass. This claim postulates that the trespass had been committed before the writ was is­sued. But in paragraph 7 of the statement of claim it was pleaded that the trespass was committed “on or about the 9th of February 1982.” By a long line of decided cases, this averment in the statement of claim superceded the writ. In other words, on appellants’ own showing the trespass on which they were claiming on the 3rd of February, 1972, had not been committed. It was on this averment that the parties went to trial. In this state of the facts the plaintiffs’ claim on this head was bound to fail on the premise that a writ filed on the 3rd of February to claim against a trespass alleged to have been com­mitted on the 9th contains a fatal element and was bound to fail.

 

There can be no doubt that ordinarily an amendment could be made to the pleading on appeal in order to make such a pleading accord with the evi­dence called at the trial. See Ibanga & Ors. v. Usanga & Ors. (1982) 5 S.C. 103, p. 126-127; Akinkuowo v. Fafimolu (1965) NMLR. 349. But the prop­osed amendment in this case, if granted, will have the effect of not merely getting the pleading accord with the evidence called at the trial but of depriv­ing the respondents of the defence available to them by saving the plaintiffs claim from failing in that head of claim. The learned counsel for the appel­lants had really picked on that fatal defect as a complete answer to that head of claim before the application for amendment was proposed during the ar­gument of the learned counsel for the respondents in this appeal. He also showed that evidence as to the date of survey relied upon to found the tres­pass is conflicting. Evidence of P. W. 1 & P. W. 9 were referred to, as exam­ples. The question is whether the application should be granted in the cir­cumstances.

 

Now, one principle which runs through all cases in which an amend­ment of a pleading is sought on appeal is that it is granted only where the jus­tice of the case requires it. The question is: does the justice of the case re­quire it in this case. In Newby v. Sharpe (1878) 8 Ch. D. at p. 39 the English Court of Appeal refused to allow an amendment which sought to convert a claim on the footing of a subsisting lease into one on the footing of an evic­tion, even though there was enough evidence on record to sustain the new claim. In Odeyinka & Ors. v. Ogunjimi C.A.W. 9/68 (unreported) the plain­tiffs instituted an action in their personal capacities and obtained judgment. On appeal it was discovered that there was no pleading or evidence to sup­port their personal claim. They sought an amendment on the ground that, as alleged in this case, that would make the pleading accord with the evidence called at the trial. The Western State Court of Appeal held that if the amend­ment was granted it would not amount to a mere amendment of the writ of summons and pleading; but that a situation would arise whereby the case the defendants were originally called upon to defend had been altered mate­rially when they had no further opportunity to meet the new issue. So it is in this case. Moreover throughout the trial the appellants had to defend an al­legation of trespass alleged committed on the 9th of February even though the writ was issued on the 3rd of February. As the plaintiffs could not suc­ceed on this state of their claim and the pleading before the court, it would be unjust to allow them now to amend the pleading in order to deprive the ap­pellants of the technical defence available to them. In a recent case of Michael Kolawole v. Pezzani Alberto: CA/L/197/85 of the 3rd day of De­cember, 1985 (unreported) – a case of renewal of an expired writ in cir­cumstances which would have deprived a defendant of a defence of limita­tion of action available to him – this Court cited with approval the opinion of the English Court of. Appeal in the case of Battersea v. Anglo-American Company Limited (1944) 2 ALL E. R. 391. In that case their Lordships said:­ ”We conclude by saying that even when an application for renewal of a writ is made within 12 months of the date of issue, the jurisdic­tion given by Order 64, Rule 7 ought to be exercised with caution. It is the duty of a Plaintiff who issues a writ to serve it promptly, and renewal is an application which is necessarily made ex parte. In every case care should be taken to see that the renewal will not pre­judice any right of defence then existing, and in any case it should only be granted where the court is satisfied that good reasons ap­pear to excuse the delay in service, as, indeed, is laid down in the order.”

 

Although this was a case of renewal of a writ, it is my view that the underlin­ing principle is the same. The proposed amendment will prejudice an exist­ing right of defence available to the appellants. It will also result in a diffe­rent allegation of trespass which the respondents will not have any oppor­tunity to answer or rebut. In my view it is an over simplification to simply call it an amendment designed to bring the pleading in accord with the evidence. It is, in my view, one that will result in injustice to the appellants. I do not grant it.

 

In the result I allow the appeal against the finding and award for tres­pass but dismiss the appeal as it relates to declaration of title and injunction. The appellants having succeeded in part I shall assess costs in the sum of N400.00 against them.

 

Appeal Dismissed